BALDEO TEWARI Vs. HARBHAJAN SINGH

JUDGEMENT

(1.) This second appeal is by the defendants against the decree of the Subordinate Judge of Sasaram dated the 20th May, 1961, reversing the decree of the Additional Munsif of that place dismissing the plaintiffs' Money Suit No. 83/97 of 1960.

(2.) The relevant facts are that the parties to this litigation were defendants 1 to 13 in a title suit bearing No. 131/76 of 52/53 brought by one Parsotim Lall as a Shebait of a deity in the Court of the Munsif of Sasaram, alleging that the defendants had demolished a water channel (Karha) through which certain plots belonging to the deity used to be irrigated. He, therefore, prayed for a declaration of the right of the deity for irrigation of those plots through the aforesaid Karha and also for the restoration of that channel to its proper position. The suit was contested by defendants 1 to 8 who are the plaintiff-respondents in the present appeal. Defendants 9 to 13 of that suit, who are the appellants here, did not appear and contest that suit. A decree was, however, passed by the learned Munsif against all the defendants. An appeal was preferred by some of the members of defendants 1 to 8, but the appeal was dismissed with costs. Parsotim Lall, the plaintiff of that suit, execrated the decree in Execution Case No. 66 of 1954, and put the property of defendants 1 to 5 and 7 and 8 to sale. These defendants paid the entire decretal amount besides cost amounting to Rs. 209/- and sued their co-defendants No. 9 to 13 of that suit for contribution of the amount they thought the latter were liable to pay. These defendants contended in that contribution suit that in equity and justice they were not liable for any contribution inasmuch as they did not contest the suit of the original plaintiff nor were they directly responsible for causing any damage to the plaintiff of that suit. They also pleaded defect of parties by saying that the suit for contribution was not maintainable on account of the fact that the co-sharer landlords who had been impleaded in the former title suit, had not been made parties. The learned Additional Munsif held that in view of a joint decree for damages and costs having been passed against the plaintiffs and the defendants and the same having been satisfied by the plaintiffs alone, the plaintiffs could sue the defendants for contribution. But, he dismissed the plaintiffs' suit on the ground of non-joinder of the co-sharer landlords who were defendants 14 to 21 in the former suit. On appeal, however, the learned Subordinate Judge has found that the non-joinder of the pro forma defendants of the former suit did not affect the claim of the plaintiffs in the suit for contribution because they were not necessary parties and so he decreed the plaintiffs' claim against the defendants. Hence the defendants have come up in appeal against this judgment of the Subordinate Judge.

(3.) Mr. Janeshwar Singh appearing for the appellants has urged that the defendants-appellants should not be made liable for contribution either in point of law or in point of equity. According to him, the title suit brought by Parsotim Lall for the demolition of the water channel was mainly directed against the defendants-respondents as they were interested in dismantling the aforesaid channel and it was they who contested the suit and preferred an appeal also and it was the wrongful acts of the respondents which were responsible for the decree of the suit and the increase in the cost of the litigation.